Ohio asks to curb early voting (UPDATED)

Posted Tue, October 9th, 2012 4:06 pm by Lyle Denniston

UPDATED 4:55 pm Justice Kagan has asked for a response to the Ohio application, to be filed by 7 p.m. on Friday.

————

State officials in Ohio on Tuesday asked the Supreme Court for permission to close the voting booths to early voters on the weekend prior to election day on November 6, for all but overseas military voters. The Sixth Circuit Court, in a ruling sought by President Obama’s campaign and by the Democratic Party, ruled that excluding non-military voters from casting their ballots on the Saturday, Sunday, and Monday just before election day would unconstitutionally deny the opportunity to vote to citizens who have lower incomes and are less educated.

The dispute fits into a nationwide pattern in which state officials have moved to narrow voting opportunities, with Republicans arguing that those steps were needed to prevent fraud and to allow election officials to conduct elections in an orderly way, and with Democrats claiming that the efforts are designed to reduce voting by groups that are assumed to favor Democratic candidates. Ohioans have already started early voting, with crowds seeking to do so on the first days of this form of “absentee” balloting. Although conducted under absentee voting laws, the early voting at issue actually occurs in person.

The application (Husted v. Obama for America, 12A338) was filed with Justice Elena Kagan, who is the Circuit Justice for emergency matters in the Sixth Circuit group of states, including Ohio. She has the authority to act on her own or to share it with her eight colleagues — a likely step. The state is seeking a delay of the Sixth Circuit ruling until it can appeal that to the Supreme Court.

Noting that the Supreme Court has ruled that there is no constitutional right to vote by absentee ballot, the state officials contended that restrictions on the right to cast such votes are to be judged by the most relaxed constitutional standard. They also contended that there can be no serious argument that the state is disenfranchising any voter or class of voters, because its laws provide for 230 hours of in-person early voting, more than 750 hours of absentee voting by mail, and 13 hours of in-person voting on election day itself.

“The Sixth Circuit’s ruling that lower income and less educated voters would not be able to vote at all other than through in-person absentee voting on these three particular days finds no support in fact or law,” the application argued. “The state’s important regulatory interests in preparing for election day,while accommodating a small number of military voters and their families, are more than sufficient to justify this de minimis inconvenience to voters.”

In defending the decision to shut down voting on the three days prior to November 6, the Ohio officials noted that about 70 percent of the state’s voters go to the polls on election day itself, and officials must use the final weekend as they set up more than 9,000 polling locations throughout the state.

Justice Kagan is expected to seek a response from the Democratic interests before taking action.

Merits Case Pages and Archives

The court issued additional orders from the December 2 conference on Monday. The court did not grant any new cases or call for the views of the solicitor general in any cases. On Tuesday, the court released its opinions in three cases. The court also heard oral arguments on Monday, Tuesday and Wednesday. The calendar for the December sitting is available on the court's website. On Friday the justices will meet for their December 9 conference; our list of "petitions to watch" for that conference is available here.

Major Cases

Gloucester County School Board v. G.G.(1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

Bank of America Corp. v. City of Miami(1) Whether, by limiting suit to “aggrieved person[s],” Congress required that a Fair Housing Act plaintiff plead more than just Article III injury-in-fact; and (2) whether proximate cause requires more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies.

Moore v. Texas(1) Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

Pena-Rodriguez v. ColoradoWhether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.

Conference of December 9, 2016

FTS USA, LLC v. Monroe (1) Whether the Fair Labor Standards Act and the Due Process Clause permit a collective action to be certified and tried to verdict based on testimony from a small subset of the putative plaintiffs, without either any statistical or other similarly reliable showing that the experiences of those who testified are typical and can reliably be extrapolated to the entire class, or a jury finding that the testifying witnesses are representative of the absent plaintiffs; and (2) whether the procedure for determining damages upheld by the Sixth Circuit, in which the district court unilaterally determined damages without any jury finding, violates the Seventh Amendment.

Overton v. United States Whether, consistent with this Court's Brady v. Maryland jurisprudence, a court may require a defendant to demonstrate that suppressed evidence “would have led the jury to doubt virtually everything” about the government's case in order to establish that the evidence is material.

Turner v. United States (1) Whether, under Brady v. Maryland, courts may consider information that arises after trial in determining the materiality of suppressed evidence; and (2) whether, in a case where no physical evidence inculpated petitioners, the prosecution's suppression of information that included the identification of a plausible alternative perpetrator violated petitioners' due process rights under Brady.